Mumbai: Calling it a violation of the right to equality Freedom of expressionThe Bombay High Court on Friday set aside the modified order. Information Technology Rules enable Center Installing your own setup Fact Checking Unit (FCU) will have to flag social media content regarding its functioning as ‘fake, incorrect or misleading’.
Holding the FCU unconstitutional, Justice A.S. Chandurkar of the Bombay High Court – who acted as the ‘tie-breaker judge’ after a division bench delivered a split verdict in January 2024 – termed the words ‘fake, false and misleading’ as ‘vague and overbroad’.
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Justice Chandurkar said, “The FCU is in a way the arbitrator in its own case.” Justice Patel had struck down the rule on January 31, 2024, terming it unconstitutional due to its vagueness and inconsistency. Justice Patel had dissented from Justice Neela Gokhale in the two-judge bench hearing the case and reached a split decision, thus bringing the case before a third judge.
Justice Chandurkar said the FCU Rule would have “a chilling effect” on individuals as well as intermediaries; the new rule could lead to the loss of the ‘safe harbour’ against legal action for social media platforms if action is not taken on content flagged by the FCU. Justice Chandurkar said the FCU Rule is devoid of safeguards to prevent its misuse, rejecting the Centre’s stance that making the FCU’s findings subject to legal challenge was a safeguard.
Restrictions imposed by FCU rule fail proportionality test: Judge
Rejecting the Centre’s proposed fact-checking unit, Justice A.S. Chandurkar of the Bombay High Court said there was no justification for determining whether information relating to Central government business was fake or false or misleading when it was in digital form but not when such information was in print.
“Under the right to freedom of speech and expression, there is no ‘right to truth’, nor is it the responsibility of the State to ensure that citizens receive only ‘information’ which is not fake, false or misleading, as identified by the FCU,” the HC said.
Justice Chandurkar, in his 99-page opinion, accepted all the key arguments raised by comedian Kunal Kamra and others who had challenged its constitutional validity citing its “chilling effect” on fundamental rights. The judge said he agreed with the arguments that the rule violates Article 14 (right to equality), Article 19(1)(a) (freedom of expression) and Article 19(1)(g) (freedom of trade) of the Constitution.
The third judge’s decision was a 2:1 majority vote against the FCU. The decision to strike down the rule will soon be formally pronounced by a two-judge bench assigned to the roster, one of whom is Justice Gokhale.
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The FCU was implemented in April 2023 through amendments to the rules for intermediaries under the IT Act 2000. The Centre introduced it as a mechanism to flag digital content relating to the Centre’s ‘business’ or functioning as ‘false, inaccurate or misleading’. Kamra was followed by the Editors Guild of India, News Broadcasters and Digital Association and Association of India Magazines, among others, challenging the decision, citing its vagueness and overbreadth and the Centre’s lack of legal competence to divide online content into two categories – non-government-related and government-related.
Justice Chandurkar concluded that the rule cannot be narrowly avoided, rejecting the Centre’s argument that it had adopted the “least restrictive means to prevent dissemination of information that is considered fake, false or misleading.”
When he first began hearing the case in March 2024, Justice Chandurkar had rejected Kamra’s plea for an interim stay until the final disposal of the challenge. Following this, the central government notified the FCU. Kamra moved the Supreme Court, which stayed the rule on March 20, raising constitutional issues.
Justice Chandurkar said the restrictions imposed by the rule failed the proportionality test “particularly when it seeks to curtail fundamental rights (free speech and trade).” He said, “Rule 3(1)(b)(v) seeks to restrict the fundamental right… by attempting to impose restrictions” which do not align with Article 19(2) (reasonable restrictions). Justice Chandurkar said this is “impermissible through delegated legislation.”
“The grievance of the Editors Guild of India is justified as it concerns both the print media as well as the digital platforms. It is thus violative of the right guaranteed under Article 19(1)(g) (freedom of trade),” the third judge said.
